CR.MA/20572/2023 of SHAIKH IRFAN MOHAMMEDBHAI Vs STATE OF GUJARAT on 22 December 2023

ORAL ORDER

1. By way of the present application under Section 438 of the Code ofCriminal Procedure, 1973, the applicant-accused has prayed for enlarging theApplicant on anticipatory bail in connection with the FIR being C.R.No. 1 1 2 0 1 0 0 1 2 3 0 0 0 7 / 2 0 2 3 registered with CID Crime PoliceStation, Gandhinagar Zone, Gandhinagarfor the offenses punishableunder Sections 143. 150. 201. 341, 342. 352. 406. 465. 467. 468. 471. 477A,504, 120B of the Indian Penal Code.

2. Heard learned Advocate for the Applicant and learned APP for theRespondent - State.

3. Learned Advocate for the Applicant has submitted that theApplicant was the employee of Electrotherm Solar managed SiddharthBhandari in a separate premises. The Applicant was roped in only because hewas reporting to Siddharth Bhandari. It is submitted that there is noinvolvement of the present Applicant in commission of the offence in question.Learned Advocate for the Applicant has submitted that the Applicant is apprehending arrest in connection the aforesaid FIR and in this connection theearlier application filed by the Applicant before the learned Sessions Courtcame to be dis-allowed. Learned advocate for the applicant oninstructions states that the applicant is ready and willing to abide by all theconditions including imposition of conditions with regard to powers ofInvestigating Agency to file an application before the competent Court for theremand. It is further submitted that upon filing of such application by theInvestigating Agency, the right of applicant accused to oppose such applicationon merits may be kept open. Learned advocate, therefore, submitted thatconsidering the above facts, the applicant may be granted anticipatory bail.

4. Learned A P P appearing on behalf of the respondent – Statehas opposed grant of anticipatory bail inter alia contending that the Applicantwas operating as a Director in Ashwathi Induction with Siddharth Bhandariand he has played a a vital role in theft of copper scrap. Learned APP hastherefore submitted that looking to the nature of offence the Application maybe dismissed.

5. Learned Advocate Mr. Pratik Y. Jasani appearing for the firstinformant has submitted taht the Applicant was found present in the Companyand he is actively involved in the commission of the offence question. Hetherefore submitted to dismiss the present Application.

6. Heard learned Advocate for the parties and perused the record. Asper the case of the prosecution, the Applicant was operating as a Director inAshwathi Induction with Siddharth Bhandari and he has played a vital role intheft of copper scrap. However, there is nothing on record to show as to howthe Applicant was involved in commission of the offence in question.Considering the aforesaid aspects, this court is inclined to grant anticipatorybail to the applicant.

7. This Court has considered following aspects, (a) as per catena of decisions of Hon'ble Supreme Court there are mainly two factors which are required to be considered by this court;

(i) prima facie case

(ii) requirement of accused for custodial interrogation.

Therefore, in the facts and circumstances of the present case, thiscourt is inclined to consider the case of the applicant.

Ratio decidendi

8. This Court has also taken into consideration the law laid downby the Hon’ble Apex Court in the case of Siddharam Satlingappa MhetreVs. State of Maharashtra and Ors., reported at [2011] 1 SCC 694, whereinthe Hon’ble Apex Court reiterated the law laid down by the Constitution Benchin the case of Shri Gurubaksh Singh Sibbia & Ors. Vs. State of Punjab,reported at (1980) 2 SCC 565. Further, this Court has also taken intoconsideration the ratio laid down in the case of Sushila Aggarwal and Ors. v.State (NCT of Delhi) and Anr. in Special Leave Petition No. 7281-7282/2017 dated 29.01.2020.

8.1This court has also considered the judgment in the case of ArneshKumar v. State of Bihar reported in (2014) 8 SCC 273,wherein the Hon’bleApex Court has observe that whenever there is punishment of 7 years, then thecourt would be liberal to exercise the discretion. Further, by exercising thediscretion under Section 438 Cr.P.C, the doors of remand by the InvestigatingOfficer is open and therefore also this court is inclined to exercise powersunder Section 438 of Cr.P.C.

9. In the result, the present application is allowed. The applicant isordered to be released on anticipatory bail in the event of arrest in connection with a C.R. No. 1 1 2 0 1 0 0 1 2 3 0 0 0 7 / 2 0 2 3 registered with CID CrimePolice Station, Gandhinagar Zone, Gandhinagarfor the offensespunishable under Sections 143. 150. 201. 341, 342. 352. 406. 465. 467.468. 471. 477A, 504, 120B of the Indian Penal Code on executing a personalbond of Rs.10,000/- (Rupees Ten Thousand Only) with one surety of likeamount on the following conditions; (a) shall cooperate with the investigation and make available for interrogation whenever required; (b) shall remain present at concerned Police Station on 29.12.2023between 12.00 Noon and 2.00 p.m.;

(c) shall not directly or indirectly make any inducement, threat or promiseto any person acquainted with the fact of the case so as to dissuade him fromdisclosing such facts to the court or to any police officer; (d) shall not obstruct or hamper the police investigation and not to playmischief with the evidence collected or yet to be collected by the police; (e) shall at the time of execution of bond, furnish the address to theinvestigating officer and the court concerned and shall not change residence tillthe final disposal of the case till further orders; (f) shall not leave India without the permission of the concerned trial courtand if having passport shall deposit the same before the concerned trial courtwithin a week; and (g) it would be open to the Investigating Officer to file an application for remand if he considers it proper and just and the learned Magistrate woulddecide the remand application without being influenced of the observationsmade by this Court;

10. The applicant shall remain present before the learned Magistrate onthe first date of hearing of such application and on all subsequent occasions, asmay be directed by the learned Magistrate. This would be sufficient to treat theaccused in the judicial custody for the purpose of entertaining application ofthe prosecution for police remand. This is, however, without prejudice to theright of the accused to seek stay against an order of remand, if, ultimately,granted, and the power of the learned Magistrate to consider such a requestin accordance with law. It is clarified that the applicant, even if, remandedto the police custody, upon completion of such period of police remand, shallbe set free immediately, subject to other conditions of this anticipatory bailorder.

11. At the trial, the concerned trial court shall not be influenced by theprima facie observations made by this Court in the present order.

12. Rule is made absolute to the aforesaid extent. Direct service ispermitted.

J.N.W / 10

(M. R. MENGDEY,J)